HKSAR v. TAM SI WING

HCMA 194/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 194 OF 2000

(ON APPEAL FROM SPCC 8436/1999)

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J U D G M E N T

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1. The Appellant appeared in the magistracy on 13 January 2000 charged with one count of Possession of Dangerous Drug contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. The Appellant pleaded not guilty and was represented by counsel on the instructions of the Duty Lawyer Scheme. He was convicted after trial and sentenced to 9 months' imprisonment. The Appellant filed standard grounds of appeal. Today he amplified those grounds.

2. He submitted that the judge was biassed as there was a lot of doubt about the witness's testimony. He said the evidence of the sole prosecution witness was incredible. He submitted that admissions attributed to him were total concoctions and were not written down. He said after the witness gave evidence, a second witness to the arrest who was present at court was not called and the prosecution had not given any reason for not doing so. He submitted that the omission to call the 2nd witness was unfair because that police officer's evidence might have contradicted that of PW1 to the benefit of the Appellant.

3. The case before the Magistrate was a simple one. The Appellant was arrested after a stop and search in the street by two officers. It was alleged that he had admitted the 20 packets of suspected dangerous drugs found on him were for his own consumption and that he asked for a chance. There was no dispute about the chain of transmission of the drugs from the police station and thereafter. Only one of the police officers was called at the trial.

4. The Magistrate found the Appellant had a case to answer and the Appellant gave evidence on his own behalf. He said that he was walking in San Po Kong area that night looking for his elder brother. He was stopped by the first police officer and another male who was in plain clothes. A third officer was said to have approached and that third officer had a plastic bag with something white inside it. The Appellant said he was taken first to the roof top of a building with which he had no connection and later taken to the police station. He denied having been in possession of the drugs exhibited and denied making any admissions that he had them for his own consumption.

5. Essentially, this case turned on the credibility of the police officer and the Appellant. The Magistrate took account of the material before him and assessed the credibility of the officer and found that he was able to rely on his evidence. He rejected the testimony of the Appellant and said that he did not believe that he had been framed up. The Magistrate had the facts before him, he saw the witness and heard the Appellant give evidence. There is nothing in the Statement of Findings which indicates that the Magistrate did not give proper attention to, or properly evaluate the evidence.

6. None of the matters advanced by the Appellant today cause me concern about the way the Magistrate handled this matter. The appeal against conviction is dismissed.